Date: 07-26-2012

Case Style: Jeffrey M. Johnson v. City of Norman

Case Number: CJ-2008-1168

Judge: Tracy Schumacher

Court: District Court, Cleveland County, Oklahoma

Plaintiff's Attorney: Andrew William Lester, R. Scott Thompson and Carrie L. Williams, Lester, Loving & Davies, P.C., Edmond, Oklahoma

Defendant's Attorney: Rickey Joe Knighton, Norman, Oklahoma

Description: Plaintiffs, Jeffrey M. Johnson and Andrea L. Johnson, for their action against Defendant, City of Norman, a municipal corporation, state:

1. At all relevant times, Jeffrey M. Johnson and Andrea L. Johnson (“Johnsons”), individuals, are and were residents of the City of Norman, County of Cleveland, State of Oklahoma.

2. City of Norman (the “City”) is a municipal corporation located in the County of Oklahoma, State of Oklahoma.
Jurisdiction and Venue

3. This Court has subject matter jurisdiction over this matter, and has personal jurisdiction over Defendant.

4. Venue is proper in Cleveland County because all parties reside in Cleveland County and the property which is the subject of this case is located in Cleveland County.

5. In compliance with the Oklahoma Governmental Tort Claims Act, Plaintiffs filed a notice of tort claim with the City Clerk for Norman on September 14, 2007, for emotional distress, lost wages, relocation expenses and other damages relating to the frequent flooding and near flooding of their home and property, 4528 Midway Drive, Norman, Oklahoma 73072 (“Property”), a!k/a:
Lot 2 of Block 1, Cambridge Place Addition, Section 5, being a part of the SW/4, Section 27, T9N, R3W, I.M., Norman, Cleveland County, Oklahoma

6. Defendant did not respond to the Plaintiffs’ claim, and therefore it was deemed denied on December 13, 2007.

7. Plaintiffs’ subsequently filed a claim for property damage on March 7,
2008. Defendant did not respond to Plaintiffs’ claim, and therefore it was deemed denied on June 6, 2008.

8. This Petition is being filed within 180 days of the date Plaintiffs’ claims were deemed denied.

Factual Allegations

9. The City of Norman accepted the dedication of the Flat for Cambridge Place Addition, Section 2, on November 8, 1994. The Plat reflected the presence of a drainage channel, which the City adopted as its own through the acceptance of the dedication of the Plat.

10. The Johnsons purchased the Property, located in the Cambridge Place Addition, Section 5, on August 31, 2000. They resided there until they were forced to relocate on July 10, 2007.

11. As a result of the improperly designed and maintained drainage chaiinel, located in Cambridge Place Addition, Section 2, the Johnsons experienced the first flood- out of their home on August 30, 2003. The Johnsons subsequently notified the City of Norman of the problem with its drainage channel.

12. Recognizing its obligation with regard to the drainage channel which had caused the flooding, the City of Norman, through Norman City Engineer Bob Hanger, sent a letter to the Johnsons dated December 17, 2003, detailing the steps the City of Norman intended to take purportedly to prevent any future occurrence of the problem. However, the flooding problems at the Johnson property continued.

13. On July 13, 2006, Mr. Hanger sent another letter regarding the continuing problems and addressing steps already taken and steps that still needed to be taken.

14. Particularly, Mr. Hanger claimed that swales alongside the house would prevent further flooding of the Property. Swales were subsequently constructed in August 2006. Nevertheless, the flooding continued, including a significant flooding event on September 17, 2006.

15. From March to May 2007, there were several more flooding events.

16. From May to June 2007, there were approximately 8 flooding events, with three being so severe as to cause flooding in the Johnson home.

17. Throughout these time periods, the Johnsons were repeatedly forced to sandbag their home to prevent even worse flooding in their home.

18. On July 10, 2007, the flooding was so severe that, despite sandbagging, the Johnson family was forced to flee their home.

19. Once again, on August 14, 2007, the Johnsons received a letter from Mr. Hanger detailing various plans the City supposedly had that the City claimed would fix the problem. The plans included capital projects which are proposed for 2008.

20. Meanwhile, the Johnson home remains unoccupied. It is too dangerous and emotionally taxing for the Johnsons to go home.


21. Since moving out after the July 10, 2007, flood, the house has flooded on at least four more occasions: July 23, 2007; August 19, 2007; September 9, 2007 and September 10, 2007. Video taken by the Johnsons shows that the Property can become completely flooded in approximately fifteen minutes.

22. In addition, the current along the east-side swale is so strong that it has already washed out a crater that reaches under the foundation.

23. The City of Norman has now installed a large drainage pipe under the Property and a cut-off wall near the Property. While these projects have improved the drainage situation, a heavy rain storm on April 9-10, 2008, demonstrated the Property is still in danger of flooding.

24. The City of Norman has indicated its intent to construct new inlets and pipes on Independence Drive near Midway Drive to intercept the runoff from the north and east before it is allowed to flow to the Property. It remains to be seen whether this project will finally resolve the flooding issues.

25. The Johnsons have incurred great cost in obtaining alternate living arrangements due to the inhabitability of the Property.

FIRST CAUSE OF ACTION

PROPERTY DAMAGES

26. The City’s acts and omissions regarding the drainage channel and the consequential flooding of the Johnson’s property has caused significant damage to the Property.


27. The damage to the Property includes the cost of numerous repairs made after flooding incidents and the diminution in value of the property due to the flooding and drainage issues.

28. Accordingly, the Johnsons are entitled to damages exceeding $10,000 for their first cause of action.

SECOND CAUSE OF ACTION
NON-PROPERTY DAMAGES

29. Jeffrey Johnson and Andrea Johnson have each suffered enormous emotional distress, not only from actually being forced from their home in July 2007, but throughout the last year as every rainstorm sparked fear of more flooding.

30. The Johnsons constantly experienced feelings of frustration and hopelessness. On numerous occasions, Mr. Johnson has had to leave work when it began to rain significantly to go home to protect his house.

31. At night, rain, or even the chance of rain, made it difficult for the Johnsons to sleep for fear that the flooding would require an immediate response.

32. Mr. and Mrs. Johnson have each been held hostage to the vagaries of Oklahoma weather because of the failures of the City. This has been both emotionally and financially painful for Mr. Johnson and for Mrs. Johnson.

33. Due to the failures of the City of Norman regarding the improperly designed and maintained drainage system, the Johnsons have each suffered enormous emotional distress, lost wages, relocation expenses and other damages relating to the frequent flooding of their Property, including their home. This culminated in the Johnsons being forced to vacate their home.

34. Accordingly, the Johnsons are entitled to damages exceeding $10,000 for their second cause of action.

WHEREFORE, the Iohnsons pray for the following relief:

1. Property damages in an amount exceeding $10,000.

2. Emotional distress damages, lost wages, relocation expenses and other damages in an amount exceeding $10,000.

3. Such other relief as maybe appropriate.

ANSWER OF DEFENDANT

COMES NOW, the Defendant, City of Norman, a municipal corporation, by and through their attorney, Rickey J. Knighton II, Assistant City Attorney for the City of Norman, and for its answer to the allegations set forth in Plaintiffs Petition, states as follows:

1. Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraph 1 of Plaintiffs Petition.

2. Defendant admits that it is a municipal corporation organized under the laws of the State of Oklahoma. Defendant denies that it is located in the County of Oklahoma, State of Oklahoma, as set forth in paragraph 2 of Plaintiff’s Petition.

3. Defendant admits the allegations contained in paragraph 3 of Plaintiffs Petition.

4. Defendant admits the allegations contained in paragraph 4 of Plaintiffs Petition.

5. Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraph 5 of Plaintiffs Petition.

6. Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraph 6 of Plaintiffs Petition.

7. Defendant admits the allegations contained in paragraph 7 of Plaintiff’s Petition.

8. Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraph 8 of Plaintiffs Petition.

FACTUAL ALLEGATIONS

9. Defendant admits that it accepted the dedication of the Plat for Cambridge Place Addition, Section 2, on November 8, 1994. Defendant denies the remaining allegations set forth in paragraph 9 of Plaintiffs petition.

10. Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraph 10 of Plaintiff’s Petition and, therefore, denies the same and demands proof thereof

11. Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraph 11 of Plaintiff’s Petition.

12. Defendant admits that Norman City Engineer Bob Hanger sent a letter to the Johnsons dated December 17, 2003, detailing the steps that the City had taken and intended to take to improve the drainage in Plaintiffs area. Defendant denies the remaining allegations set forth in paragraph 12 of Plaintiffs petition.

13. Defendant admits that on July 13, 2006, Mr. Hanger sent another letter regarding the maintenance the City had completed to improve the drainage system in Plaintiffs area. Defendant denies the remaining allegations set forth in paragraph 13 of Plaintiff’s petition.

14. Defendant admits that in the letter Mr. Hanger advised Plaintiff that the best way Plaintiff could protect his home from flooding was to construct a swale along the east and west sides of his home. Defendant is without sufficient knowledge to admit or deny the remaining allegations contained in paragraph 14 of Plaintiffs Petition.

15. Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraph 15 of Plaintiffs Petition and, therefore, denies the same and demands proof thereof.

16. Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraph 16 of Plaintiffs Petition and, therefore, denies the same and demands proof thereof.

17. Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraph 17 of Plaintiff’s Petition and, therefore, denies the same and demands proof thereof.

18. Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraph 18 of Plaintiff’s Petition and, therefore, denies the same and demands proof thereof.

19. Defendant admits that on August 14, 2007, Mr. Hanger sent a letter to Plaintiff detailing the maintenance the City of Norman had performed to improve the drainage system in Plaintiffs area. Defendant further admits that in said letter Mr. Hanger detailed a proposed 2008 storm drainage improvement project which was contingent upon the City of Norman receiving temporary and permanent drainage easements. Defendant denies the remaining allegations contained in Paragraph
19 of Plaintiffs Petition.

20. Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraph 20 of Plaintiffs Petition.

21. Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraph 21 of Plaintiffs Petition.

22. Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraph 22 of Plaintiffs Petition.

23. Defendant admits that it installed a drainage pipe on Plaintiffs property. Defendant is without sufficient knowledge to admit or deny the remaining allegations contained in paragraph 23 of Plaintiffs Petition.

24. Defendant admits that it proposed to construct a storm drainage inlet and pipeline on Midway Drive at Independence Drive in order to intercept runoff and to prevent storm water from accumulating near Plaintiffs residence. Defendant is without sufficient knowledge to admit or deny the remaining allegations contained in paragraph 24 of Plaintiffs Petition.

25. Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraph 25 of Plaintiffs Petition and, therefore, denies the same and demands proof thereof.

FIRST CAUSE OF ACTION

PROPERTY DAMAGES

26. Defendant denies the allegations contained in paragraph 26 of Plaintiff’s Petition and demands strict proof thereof.

27. Defendant denies the allegations contained in paragraph 27 of Plaintiffs Petition and demands strict proof thereof.

28. Defendant denies the allegations contained in paragraph 28 of Plaintiffs Petition and demands strict proof thereof

SECOND CAUSE OF ACTION
NON- PROPERTY DAMAGES

29. Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraphs 29 through 34 of Plaintiff’s Petition and demands strict proof thereof.

Defendant denies that the Plaintiff is entitled to judgment against this Defendant and firther denies that Plaintiff is entitled to property damages in an amount exceeding $10,000, emotional distress damages, lost wages, relocation expenses and other damages in an amount exceeding $10,000 or any other relief.

AFFIRMATIVE DEFENSES

1. Plaintiff fails to state a claim upon which relief can be granted.

2. Plaintiff’s action is barred by the applicable statute of limitations.

3. Plaintiff’s damages, if any, are limited by the Oklahoma Governmental Tort Claims Act.

4. Defendant is protected andlor exempt from liability pursuant to the Oklahoma Governmental Tort Claims Act.

5. Defendant reserves the right to add additional defenses as discovery continues.

WHEREFORE, having frilly answered, Defendant, City of Norman, prays that Plaintiff take nothing by virtue of his Petition filed herein and that the Court grant this Defendant its costs and attorney’s fees aid any other relief it deems equitable and proper.

Outcome: This action comes before the Court upon the Application of the parti s in which the Court was advised that the parties have settled this lawsuit and that one term of the settlement allows entry of judgment against the City of Norman in the total amount of Forty Five Thousand Dollars and 001100ths Dollars ($45,000.00) without admission of liability and with no effect other than to settle this case.

IT IS ORDERED AND ADJUDGED that the Plaintiffs, JEFFREY and ANDREA JOHNSON recover from Defendant City of Norman the sum of Forty Five Thousand Dollars and 00/l00t Dollars ($45,000.00) which sum is inclusive of costs and
attorney fees. ii

Plaintiff's Experts:

Defendant's Experts:

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